Jurors, like all human beings, are imperfect. It follows that jury deliberations may also be imperfect. A single juror may fail to recollect some bit of testimony. Some jurors may forget or misapply one of the instructions. Others may focus tenaciously but unreasonably on one aspect of the record to the exclusion of the rest. Through the give and take of deliberations, however, the jury's collective memory and common sense will often correct these types of errors and lead to a result that surpasses in wisdom the understanding of any one person.

In this case, the parties agree that the deliberations were imperfect. Evidence submitted in support of defendants' motion for new trial revealed that one or more members of the jury " discussed the fact that if the [defendants] were innocent then they should've testified." Evidence submitted in opposition to the motion indicated that the foreperson " immediately admonished that juror that [they] could not consider that issue" and " there was no further mention" of it. The Court of Appeal found--and the parties do

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not dispute--that the discussion of defendants' decisions not to testify constituted misconduct that raised a presumption of prejudice. The Court of Appeal also found--and the parties do not dispute--that the trial court failed to recognize and resolve a conflict in the evidence as to whether the foreperson did in fact remind the jury of the court's instructions to disregard defendants' decisions not to testify. But the Court of Appeal deemed it unnecessary to remand the matter to the trial court to resolve that evidentiary conflict. The appellate court instead reasoned that the misconduct was prejudicial--even assuming the foreperson had [339 P.3d 320] promptly and correctly reminded the jury of the court's instructions--because the jury's discussion involved " an inference of guilt based on [defendants'] failure to testify." The Court of Appeal therefore reversed the convictions and ordered a new trial.

Reviewing the issue of prejudice from juror misconduct independently, as is our duty, we find that the Court of Appeal erred in declaring the misconduct in discussing defendants' decisions not to testify to be categorically prejudicial without considering whether the jury was promptly reminded of the court's instructions to disregard defendants' decisions not to testify or whether any objective evidence in the record indicated that the reminder of the court's instructions would have been ineffective. We therefore reverse the Court of Appeal and remand the matter to the trial court to determine in the first instance the nature and scope of the misconduct, the existence and timing of any reminder of the court's instructions to disregard defendants' decisions not to testify, as well as any other material disputed facts, and to reconsider the motion for new trial.

Background

Defendants Floyd Lavender and his cousin Michael James Gaines were convicted [181 Cal.Rptr.3d 31] of the kidnapping (Pen. Code, [1] § 207, subd. (a)) and first degree murder (§ 187, subd. (a)) of Courtney Bowser, and the torture (§ 206) of Bowser and two other victims, Kristen Martin and Michael Hughes. Defendants were each sentenced to a term of 25 years to life for the murder, plus a consecutive five-year term for kidnapping, as well as three concurrent life terms for torture, consecutive to the indeterminate term for the murder.

The prosecution alleged that on the night of August 14, or in the early morning hours of August 15, 2003, defendants tortured and terrorized the victims (a group of methamphetamine users, two of whom had recently been released from juvenile hall) and threatened to shoot them over a period of hours in an effort to discover who had stolen two blank or not fully printed traveler's checks that Gaines had entrusted to Angela Vereen, his upstairs

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neighbor in Palm Desert. As Gaines was about to resume his investigation into the checks' disappearance by pounding the flat ends of nails into Hughes's head with a hammer or chisel, Bowser blurted out that she had taken the checks and had traded them for " dope." After beating and torturing Bowser--and telling her she was going to die--defendants handcuffed her and led her out of Vereen's apartment. The next morning, Vereen asked Gaines whether he and Lavender had recovered the missing traveler's checks. Gaines said " no," but added that " [t]he girl is in a canal with a bag over her head barely breathing."

Five days later, Bowser's lifeless body was discovered in an irrigation ditch leading to the Pansy Canal in Imperial County. Her body was not identified until February 2006.

The defense argued that Bowser had died from a drug overdose after a multiday methamphetamine binge with the prosecution's percipient witnesses, that these witnesses had panicked and disposed of Bowser's body in the ditch, and that these witnesses concocted a story to scapegoat defendants in the event the police ever became involved. No forensic evidence linked defendants to Bowser's death.

The forensic pathologist who performed the autopsy opined that Bowser had been alive when placed in the water and had died of drowning following a struggle. He excluded drug overdose, including an overdose of gamma-hydroxybutyric acid (GHB, a date rape drug), as the cause of death. However, a defense expert who examined the various reports testified that Bowser would have been dead at the time she was placed in the water and that he would not rule out an overdose as the cause of death, noting ...

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